Discrimination in the workplace: Protecting sexual orientation

Employees have a statutory right not to suffer discrimination in the workplace and it is essential that employers, and those responsible for managing the workforce, fully understand the legal provisions and the potential consequences of failing to comply. Sexual orientation is one of nine characteristics that are protected by discrimination legislation. 

What the law says

The Equality Act 2010 protects job applicants and those in employment against direct and indirect discrimination, victimisation and harassment including associative (someone they associate with) and perceived (believed to have a certain sexual orientation) discrimination. The term ‘sexual orientation’ is defined as a person’s sexual orientation towards: 

• a person of the same sex; 
• persons of the opposite sex; or 
• persons of either sex.

Gay men, lesbians, bisexuals and heterosexuals are all caught by the definition above, albeit those who are asexual are unlikely to receive the same protection. It is important to note that gender reassignment is a separate protected characteristic and is unrelated to sexual orientation. 

Discrimination can take many forms, such as bullying, exclusion, microaggressions, or stereotyping, and can affect various aspects of work. 

Potential for litigation

There is no qualifying length of service required to bring a complaint of discrimination or harassment in the employment tribunal. If an employer is found to be liable for discrimination or harassment on the grounds of an employee’s sexual orientation, there is no limit on the amount of compensation that may be awarded, meaning that such claims are potentially costly to employers. Compensation includes both financial loss and injury to feelings (which is determined by the tribunal in accordance with the Vento guidelines). From 1 April 2024, the Vento bands start at £1,200 and go up to £58,700 for the upper band with the most exceptional cases capable of exceeding £58,700. Employers should therefore be mindful of the potential liability should a claim be successfully brought, as well as the detrimental impact it may have on its own workplace culture and brand reputation.  

Case law examples where claims have successfully been brought against employers include refusal to employ a gay couple, a heterosexual woman being dismissed from a gay bar, dealing with grievances in a prejudicial way, conducting disciplinaries tainted by unconscious bias and name calling, impersonation and rumours. 

Common issues employers face

An employee may be discriminated on the grounds of their sexual orientation throughout their employment, from recruitment to termination and even beyond. There are, however, some situations that commonly arise that employers should be mindful of.

Recruitment

Employers should be aware of the legal and ethical implications of excluding or preferring candidates based on their sexual orientation, whether explicitly or implicitly. Discrimination can take place at any stage of the recruitment process; from the advertisement of the vacancy to the selection criteria used, to the interview questions asked and the feedback given or not given as the case may be. 

Employers should ensure that they use inclusive and neutral language in their job advertisements and advertise vacancies in a range of locations to attract the broadest range of applicants. Additionally, employers should not ask for or consider irrelevant information about the candidates' personal lives: they should base their decisions solely on the qualifications, skills and experience of the applicants.

Company benefits only being made to opposite-sex partners

One of the most common forms of discrimination on the grounds of sexual orientation is the denial or restriction of company benefits to employees who have same-sex partners. These benefits may include health insurance, pension schemes, parental leave, travel allowances, relocation assistance, or bereavement leave. By limiting these benefits to opposite-sex partners, employers are not only discriminating against their LGBTQ+ staff but also undermining the culture of the organisation. This can lead to lower morale, productivity, and retention, as well as legal risks and external reputational damage for the company. 

Employers should ensure that their benefit policies are inclusive and non-discriminatory, and that they respect the diversity of their workforce. 

Clash of protected rights

Occasionally employers may encounter situations where there is a clash between those with the protected characteristic of sexual orientation and another protected characteristic, such as religion or belief. For example, some religious groups may have doctrines or practices that are opposed to homosexuality or same-sex marriage. 

Such situations are not easy to manage but there are ways that employers can look to best manage the situation. In a recent case concerning a Christian nursery worker who was dismissed for expressing her views on homosexuality to a lesbian colleague, the employment tribunal made recommendations as to the steps employers can take to prevent and address any potential issues arising which include: 

• Reviewing, updating and enforcing equality and diversity policies and ensuring that they cover all protected characteristics.
• Providing regular and comprehensive training for all staff on equality and diversity issues, including how to handle conflicts or disagreements between employees with different beliefs or orientations.
• Implementing a clear and fair disciplinary procedure that is applied consistently and objectively to all staff and that takes into account the context and circumstances of each case.
• Seeking advice from external experts or organisations on how to promote a culture of respect and tolerance among its diverse workforce.

Employers should also encourage open dialogue and mutual understanding amongst their diverse staff and provide support and resources for those who may need them. 

Culture of inclusion

Professor Binna Kandola OBE says “While there has been a remarkable positive change in attitudes to LGBTQ+ over the last 15 years and many organisations now hold external and internal facing events to celebrate Pride month and to demonstrate their support, we also however need to be aware that homophobic attitudes are still present, and discrimination occurs against members of the LGBTQ+ community. Harassment is a particular issue for all members of the community but especially for those who are bisexual and transsexual. For much of the 20th century if someone was attracted to another of the same sex it was seen as an illness and it was only on 17th May 1990 that the World Health Organisation removed homosexuality as a mental disorder (the significance of the date is now recognised as this is the International Day against Homophobia, Transphobia and Biphobia).”

He goes on to explain “Research has shown that unconscious bias can impact our perceptions of individuals identifying as LGBTQ+. The concern about being characterised in this way will mean that LGBTQ plus individuals are less likely to be out in some workplaces than in others. The pressure of keeping one’s identity secret from colleagues, places greater stress on them and can impact their performance as well as having a detrimental impact on their psychological well-being.” 

Other steps for employers to take to avoid discrimination 

• Conduct regular firm-wide surveys and focus groups to assess the level of inclusion and satisfaction of LGBTQ+ employees and allies and identify areas for improvement. Professor Kandola explains that typically organisations find the response to surveys initially will be quite poor. It is important to repeat the surveys on a regular basis, and to report back on the actions taken. This will demonstrate to LGBTQ+ colleagues that the organisation is committed to making the culture more inclusive, encouraging a greater number of responses in the future.
• Provide diversity and inclusion training for all employees, especially managers and leaders, to raise awareness and understanding of LGBTQ+ issues and challenges, and to equip them with skills and tools to prevent and address discrimination.
• Establish and support employee resource groups, networks, and mentors for LGBTQ+ employees and allies, to offer them a safe space to share their experiences, voice their concerns, and access support and guidance. 
• Celebrate and promote LGBTQ+ visibility and representation in the workplace, such as by recognising LGBTQ+ role models, allies, and achievements.

Concluding thoughts

Employers should ensure they have adequate policies (particularly DEI and anti-harassment) and training in place which covers all protected characteristics, including that of sexual orientation. Policies should be regularly reviewed, and refreshers put in place for all employees. Furthermore, employers must deal with any issues that arise sensitively and appropriately to minimise their exposure to the risk of claims whether that be by strengthening their policies, putting in place further training or dealing with any complaint or issue appropriately in accordance with their disciplinary procedure (if necessary). As Professor Kandola cautions, we should also be aware that despite the very positive change in attitudes, unconscious bias and stereotypical views remain as important issues that need to be addressed if we are to create an inclusive culture for everyone regardless of their sexual orientation.